I rebuttable presumptions of law, or præ of payment, still it does not necessarily prove it, and the conclusive effect of such a receipt is altogether a creature of the law. So, the maxim by which a party who kills another is presumed to have done it maliciously, seems to rest partly on natural equity and partly on policy. To these may be added a third class, in which the principle of legal expediency is carried so far as to establish inferences not perceptible to reason at all, and perhaps even repugnant to it. Thus, when the law punishes offences, even mala prohibita, on the assumption that all persons in the kingdom, whether natives or foreigners, are acquainted with the common and general statute law; and when it presumes that a person who renders himself executor de son tort has in his possession an unproved will of the deceased, it manifestly assumes that which has no real existence whatever, though the arbitrary inference may be dictated by the soundest policy. § 295. A very important distinction exists among presumptions of law,-namely, that some are absolute sumptiones juris and conclusive, called by the common lawyers irrebutet de jure. table presumptions, and by the civilians præsumptiones juris et de jure; while others are conditional, inconclusive, or rebuttable, and called by the civilians præsumptiones juris tantùm, or simply præsumptiones juris. The former has been most accurately defined by the civilians "Dispositio legis aliquid præsumentis, et super præsumpto tanquam sibi comperto, statuentis." They add Præsumptio juris dicitur, quia lege introducta est; et de jure, quia super tali præsumptione lex inducit firmum jus, et habet eam pro veritate (n)." In a word, they are inferences which the law makes so peremptorily that it will not allow them to be overturned by any contrary proof, however strong. Thus, where a cause has once been regularly adjudicated upon by a competent tribunal, (n) Alciatus, de Præs. Pars 2, N. 3; Menochius, de Præs. lib. 1, quæst. 3, N. 17; Poth. Obl. § 807. from which there lies no appeal, the whole matter assumes the form of res judicata, and evidence will not be admitted, in subsequent proceedings between the same parties, to shew that decision erroneous (p). An infant under the age of seven years is not only presumed incapable of committing felony, but the presumption cannot be rebutted by the clearest evidence of a mischievous discretion (q). So, a bond or other specialty is presumed to have been executed for good consideration, and no proof can be admitted to the contrary (r), unless the instrument is impeached for fraud (s). A receipt under hand and seal is conclusive evidence of the payment of money; and under the old feudal tenure it was an irrebuttable presumption of law that a person under the age of twenty-one was incapable of performing knight service (t). them. § 296. These conclusive presumptions have varied Number of considerably in the course of our legal history. Many presumptions which in earlier times were deemed absolute and irrebuttable, have, by the opinion of later judges, acting on more enlarged experience, either been ranged among præsumptiones juris tantùm, or considered as presumptions of fact to be made at the discretion of a jury (u). On the whole, modern courts of justice are slow to recognize presumptions as irrebuttable, and disposed rather to restrict than extend their number. By an arbitrary rule to preclude a party from adducing evidence which, if received, would compel a decision in his favour, is an act which can only be justified by the clearest expediency and soundest policy; and there are (p) See infra, ch. 9. (9) 1 Hale, P. C. 27—8; 4 Blackst. Comm. 23. (r) Plowd. 308-9; 2 Stark. Ev. 930, 3rd Ed.; ld. 747, 4th Ed. (s) Stark. in loc. cit. See Part 2, ch. 3, sect. 1, § 220. (t) Litt. sect. 103; Co. Litt. 78 b. (u) Ph. & Am. Ev. 460; 1 Phil. Ev. 469, 10th Ed. Use of them. Legal fictions. presumptions still retained in this class which never ought to have found their way into it. § 297. Præsumptiones juris et de jure are not, however, without their use. On the contrary, when restrained within due limits, they exercise a very salutary effect in the administration of justice, by throwing obstacles in the way of vexatious litigation, and repressing inquiries where sound and unsuspected evidence is not likely to be obtained. Among the most useful in these respects, may be ranked the principle which upholds the authority of res judicata, the intendments made by the courts to support the verdicts of juries, and, as qualified by modern decisions, the doctrine of estoppel. § 298. Legal "fictions" are closely allied to irrebuttable presumptions of law. "Fictio est legis, adversus veritatem, in re possibili, ex justâ causâ, dispositio (.x) :” in other words, where the law, for the advancement of justice, assumes as fact, and will not allow to be disproved, something which is false, but not impossible. The difference between them and præsumptiones juris et de jure consists in this; that the latter are arbitrary inferences which may or may not be true, while in the case of fictions the falsehood of the fact assumed is understood and avowed (y). "Super falso et certo fingitur, super incerto et vero præsumitur (z)." Thus, the præsumptio juris et de jure that infants under the age of seven years are doli incapaces for felonious pur (r) Gothofred. Not. 3, ad lib. 22 Dig. tit. 3; Westenbergius, Principia Juris, ad lib. 22 Dig. tit. 3, § 28; Huberus, Positiones Juris, ad lib. 22 Dig. tit. 3, N. 25; Menochius, de Præs. lib. 1, quæst. 8; 3 Blackst. Comm. 43, note (b). See also 2 Rol. 502,. and Palm. 354. (y) Huberus, Præl. Jur. Civ. lib. 22, tit. 3, N. 21; Voet. ad Pand. lib. 22, tit. 3, N. 19; Alciatus, de Præs. Pars 1, N. 4. (z) Gothof. Not. (3) ad lib. 22 Dig. tit. 3. poses (a), is probably true in general, though false in particular instances; but when, in order to give jurisdiction to the courts at Westminster, the law feigns that a contract which was really entered into at sea was made at the Royal Exchange in London (b), the assumption is avowedly false, and a fiction in the completest sense of the word. § 299. Fictions of law, as justly observed by Mr. Use of them. Justice Blackstone (c), though they may startle at first, will be found on consideration to be highly beneficial and useful. They are invented, say the civilians, "ad conciliandam æquitatem, cum ratione et subtilitate juris (d);" and it is a well known maxim of the common law, "in fictione juris semper subsistit æquitas (e);" in furtherance Two rules reof which principle the two following rules have been laid specting fic down. tions. § 300. First, fictions are only to be made for necessity, 1st. Must not and to avoid mischief (f), and, consequently, must never cent parties. prejudice innobe allowed to work prejudice or injury to an innocent party (g): "Fictio juris non operatur damnum vel injuriam (h)." Thus, when a man seised in fee of lands. marries, and makes a feoffment to another, who grants a rent-charge out of it to the feoffor and his wife, and to the heirs of the feoffor, the feoffor dies, and his wife recovers the moiety of the land for her dower by custom, she may distrain but for half of the rent-charge; for although, by fiction of law, her claim of dower is above the rent, yet, if that fiction were carried so far as to allow 2nd. Must have a possible subject matter. her to distrain for the whole rent, it would work a wrong to a third person, which the law will not allow (i). So, although the vouchee in a common recovery was, by fiction of law, considered tenant of the land so far as to enable him to levy a fine to the demandant, or to accept a fine or release from him, still, as the vouchee had really nothing in the land, a fine by him to a stranger, or a fine or release to him from a stranger, was void (k). § 301. Secondly, it is said to be a rule that the matter assumed as true must be something physically possible (7). "Lex non intendit aliquid impossibile (m)." "Lex non cogit impossibilia (n).” "Nulla impossibilia sunt præsumenda; vera autem et possibilia (o)." Thus, says Huberus, where a man devises his property, on condition that the devisee shall do a certain act within a limited time after the death of the devisor; until that time has expired with the condition unperformed, the deceased cannot be said to have died intestate; because the condition, when performed, has a retrospective effect to the (i) Co. Litt. 150 a. possunt;" and also the fact that a (m) 12 Co. 89. |